FALL RIVER — George E. Thompson claims he held his iPhone at arm's length and recorded a Fall River police officer who he alleges was cursing and talking on his cell phone during a street construction detail outside his house.

The officer, Thomas Barboza, says that Thompson, 51, was secretly recording him during the Jan. 6 confrontation on Thompson's Locust Street front porch. Barboza arrested Thompson on grounds that he violated the state's wiretap law, a charge that Thompson says he will fight "as far as it goes."

"The officer told me, 'It's a federal offense what you're doing. You can't videotape me,'" said Thompson, whose case is pending in Fall River District Court.

"We've got the right to record police officers on the street," Thompson said. "I don't have to ask his permission. That's the law."

A 2011 federal court ruling appears to support Thompson's position, although that has not stopped some local police officers in recent years from arresting people for using their cell phones to record them in public settings.

In their reports, the officers cited the state's wiretap law that says it is illegal to audio-record someone without their permission. There are no definite statistics, but several police officers across Massachusetts in the past several years have used that statute to arrest people who were recording them, and then to confiscate their phones.

"We are still seeing people who are openly recording and they are having police officers tell them, 'Hey, you can't do that. Stop that or I'm going to arrest if you keep doing that,'" said Sarah Wunsch, a staff attorney with the American Civil Liberties Union of Massachusetts.

"Police officers are actually interfering with people's rights when they arrest them for that," Wunsch said, adding that the ACLU has also received recent complaints from residents about Massachusetts State Police Troopers arresting them for video-recording the troopers.

"We hope to have a discussion with the head of state police about this issue," Wunsch added.

With the proliferation of smartphone technology, more people than ever are walking around with video and audio recording capability, which presents a new reality for police officers on the beat.

"I think police officers should just assume that they could be recorded at anytime," Westport Police Detective Jeffrey Majewski said, adding that he believes there might be some situations — such high-risk search warrant executions — where preventing someone from recording an officer in public may be warranted.

"Anything short of that, it's absolutely legal to be recording the police in public," Majewski said.

However, Somerset Police Chief Joseph Ferreira said he believes people can record police officers only as long as they do so in an open and public manner.

"As far as I'm concerned, if anyone secretly videotapes anyone or electronically records them without their knowledge, it may very well violate the wiretap law," Ferreira said. "If that happened in our jurisdiction, I would press for criminal charges under the wiretap statute, then let the DA make the determination."

Page 2 of 3 - Since the U.S. First Circuit Court of Appeals ruled in August 2011 that the First Amendment allows citizens to record police activity in public, local police departments in Massachusetts have instructed their officers that they cannot arrest someone for recording them in plain view, though several police officials appear to have taken a different position on the question of secret recordings.

"I've said to heads of those police departments that they are treading on thin ice," Wunsch said, adding that the First Circuit ruling makes no distinction between secret and public recordings of police officers and other public officials in the course of their official duties.

"It's kind of regrettable that the First Circuit wasn't more specific," said Peter Elikann, a Boston criminal defense attorney who spoke on behalf of the Massachusetts Bar Association.

"The First Circuit didn't even mention the distinction between secretive and non-secretive recordings," Elikann said. "It basically said that at anytime in whatever fashion, citizens are allowed to record public officials carrying out their public duties."

The First Circuit ruling affirmed the First Amendment rights of Simon Glick, a Boston lawyer who was arrested in Octoer 2007 after he used his cell phone to record three Boston police officers who he felt were using excessive force to arrest a teenager in Boston Common. The officers arrested Glick on charges that he violated the state's wiretap law.

Glick's case was later thrown out by the courts, and he pressed his rights in a federal civil rights lawsuit. The First Circuit's ruling, which allowed the lawsuit to move forward, said it was unconstitutional for the state to prosecute people under the Massachusetts' wiretap law for recording the police in public.

However, the First Circuit's ruling conflicts with a 2001 Massachusetts Supreme Judicial Court decision that upheld the 1999 conviction of Michael Hyde, a former Braintree man who secretly audio-recorded Abington police officers who Hyde felt were abusive to him during a traffic stop. Instead of getting the officers in trouble, Hyde was prosecuted and convicted of violating the state wiretap law.

In a sharply-worded dissent, former SJC Chief Justice Margaret H. Marshall said the state wiretap statute was not intended "to shield public officials from exposure of their wrongdoings."

As it stands now, it seems the First Circuit ruling nullifies the SJC decision since federal law trumps the state trial court.

"There is a factual dispute that has to be resolved," Wunsch said. "The state statute makes it a crime to secretly record, but the statute itself may be unconstitutional."

"It would be helpful if Massachusetts clarified this on their own law books, once and for all, either by the Supreme Judicial Court or by the Massachusetts Legislature," Elikann said.

Meanwhile, Fall River defense attorney Daniel R. Igo said he will file a motion to dismiss the wiretap charge against Thompson in Fall River District Court.

Page 3 of 3 - "There is no probable cause to believe that (Thompson) violated the wiretap statute based on the facts of the police report," Igo said.

Fall River police officer Thomas Barboza wrote in his report that Thompson told him he was recording him on his iPhone, but that he was also secretly audio-recording him on another phone allegedly hidden under Thompson's left hand. Barboza also wrote that Thompson at first tried to hide the fact that he was first video-recording him on the iPhone by holding the device close to his chest, though Thompson claims he was recording the officer in plain sight the entire time.

Thompson — who also alleges Barboza cursed and threatened him — has filed a complaint with the Fall River Police Department's Office of Professional Standards, which is similar to an Internal Affairs division. Thompson said a Professional Standards investigator recently told him that his iPhone's memory was cleared on Jan. 8, two days after Barboza arrested him and seized his phones.

Fall River Police Detective JD Costa, a police department spokesman who is assigned to Professional Standards, declined to comment on Thompson's complaint.